Aster Organ Trafficking Case - Ziyad

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 25TH DAY OF JULY 2023 / 3RD SRAVANA, 1945
CRL.MC NO. 1019 OF 2022
AGAINST THE ORDER/JUDGMENT IN CC No.498/2021 OF JUDICIAL MAGISTRATE
OF FIRST CLASS - IX, ERNAKULAM (TEMPORARY)
PETITIONERS/ACCUSED NOS.1,2,4,5,6 & 10:
1 ASTER MEDCITY,KUTTISAHIB ROAD, CHERANELLORE, SOUTH CHITTOOR,
ERNAKULAM, REPRESENTED BY ITS AUTHORISED SIGNATORY AND CEO,
MRS. AMBILI VIJAYARAGHAVAN., PIN - 682027
2 DR. MATHEW JACOB,SENIOR LEAD CONSULTANT-HEPATOBILARY AND
MULTI-ORGAN TRANSPLANT SURGERY, ASTER MEDCITY, KUTTISAHIB
ROAD, CHERANELLORE, SOUTH CHITTOOR, ERNAKULAM, PIN - 682027
3 DR. CHARLES PANAKKAL,SENIOR CONSULTANT-HEPATOLOGY AND LIVER
TRANSPLANTATION, ASTER MEDCITY, KUTTISAHIB ROAD, CHERANELLORE,
SOUTH CHITTOOR, ERNAKULAM, PIN - 682027
4 DR. RAJESH RAJAGOPAL,CONSULTANT-ANESTHESIA AND CRITICAL CARE,
ASTER MEDCITY, KUTTISAHIB ROAD, CHERANELLORE, SOUTH CHITTOOR,
ERNAKULAM, PIN - 682027
5 DR. SANGEETH P.S,CONSULTANT-ANESTHESIOLOGY AND CRITICAL CARE
MEDICINE, ASTER MEDCITY, KUTTISAHIB ROAD, CHERANELLORE, SOUTH
CHITTOOR, ERNAKULAM, PIN - 682027
6 DR. SHEJOY P. JOSHUA, NEUROSURGERY, ASTER MEDCITY, KUTTISAHIB
ROAD, CHERANELLORE, SOUTH CHITTOOR, ERNAKULAM, PIN - 682027
BY ADVS.
P.JAYABAL MENON
REKHA AGARWAL
RESPONDENTS/STATE AND COMPLAINANT:
1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULUM, PIN - 682031
2 DR. S. GANAPATHY, S/O LATE ADV .K. SADANANDAN, "ANJALI",
MARUTHADI P.O, KOLLAM., PIN - 691003
R2 BY ADVS.
R.RENJITH, SANTHAN V.NAIR(K/1635/2001)
CHRISTEENA P GEORGE(K/001170/2019)
MANJUSHA K(K/000191/2018)
R1 BY SMT.SEENA C., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON

26.06.2023, ALONG WITH Crl.MC.1010/2022, 1995/2022 AND CONNECTED
CASES, THE COURT ON 25.7.2023 PASSED THE FOLLOWING:
CRL.MC No.1019/2022 & con.cases. 2

PRESENT
CRL.MC NO. 798 OF 2022
AGAINST THE ORDER/JUDGMENT IN CC No.498/2021 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - IX, ERNAKULAM (TEMPORARY)
PETITIONER/ACCUSED NO.11
DR. RAKHI R R
AGED 50 YEARS
D/O RAGHAVAN G, CONSULTANT (GENERAL MEDICINE) GENERAL
HOSPITAL, MUVATTUPUZHA, ERNAKULAM- 686 661 RESIDING AT
'KRISHNAKRIPA', MODEL HS ROAD MUVATTUPUZHA, ERNAKULAM,
PIN - 686661
BY ADVS.
LAYA MARY JOSEPH
AJAY BEN JOSE
RESPONDENT/STATE AND COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 DR. GANAPATHY
AGED 73 YEARS
S/O LATE ADV K. SADANANDAN RESIDING AT "ANJALI",
MARUTHADI P.O KOLLAM, PIN - 691003
BY ADVS.
R2 BY R.RENJITH
CHRISTEENA P GEORGE
SANTHAN V.NAIR
MANJUSHA K
R1 BY SMT.SEENA C, PUBLIC PROSECUTOR

& VIPIN NARAYAN, SR. PUBLIC PROSECUTOR

26.6.2023 ALONG WITH Crl.MC.1019/2022 AND CONNECTED CASES, THE
COURT ON 25.7.2023 PASSED THE FOLLOWING:

PRESENT
CRL.MC NO. 1010 OF 2022
PETITIONER/ACCUSED NO.12:
DR. VIVEK NAMBIAR

AGED 46 YEARS
NEUROLOGIST, AMRITHA INSTITUTE OF MEDICAL SCIENCES,
PONEKKARA P.O, KOCHI, PIN - 682041
BY ADV HARIKRISHNAN S.
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULUM., PIN - 682031
2 DR. S. GANAPATHY,
S/O LATE ADV .K.SADANANDAN"ANJALI", MARUTHODI P.O,
KOLLAM, PIN - 691003
BY ADVS.
R2 BY R.RENJITH
SANTHAN V.NAIR(K/1635/2001)
CHRISTEENA P GEORGE(K/001170/2019)
R1 BY SEENA C, PUBLIC PROSECUTOR,

& VIPIN NARAYAN, SR. PUBLIC PROSECUTOR

26.06.2023, ALONG WITH Crl.MC.1019/2022 AND CONNECTED CASES, THE

PRESENT
CRL.MC NO. 1995 OF 2022
PETITIONER/ACCUSED NO.8:
DR. RAJ ANDERSON CORREYA

AGED 42 YEARS, WORKING AS
JR. CONSULTANT, TALUK HEAD QUARTERS HOSPITAL, FORT
KOCHI, PIN- 682001, RESIDING AT HOUSE NO. 67/6849,
MARKET ROAD, ERNAKULAM, COCHIN – 682035.
BY ADVS.
O.V.MANIPRASAD
JOSE ANTONY
S.SHIV SHANKAR
CHERIAN CHACKO MANAYATH
ANITA ANN GEORGE
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
2 2. DR. S GANAPATHY
AGED 73 YEARS
S/O LATE ADV K SADANANDAN RESIDING AT "ANJALI",
MARUTHADI P O, KOLLAM - PIN: 691 003.
BY ADVS.
R2 BY R.RENJITH
SMITHA PHILIPOSE(K/592/2005)
SOUMYA FRANCIS(K/000605/2020)
R1 BY SMT. SEENA C., PUBLIC PROSECUTOR


PRESENT
CRL.MC NO. 3048 OF 2022
AGAINST THE ORDER/JUDGMENT IN CC 498/2021 OF JUDICIAL MAGISTRATE
OF FIRST CLASS - IX, ERNAKULAM (TEMPORARY)
PETITIONER/ACCUSED NO.13
DR. NOBLE GRACIOUS S.S.

AGED 50 YEARS, S/O. SUNNY,
NODAL OFFICER, KERALA NETWORK FOR ORGAN SHARING
(KNOS), SUPER SPECIALITY BLOCK, GOVERNMENT MEDICAL
COLLEGE, MEDICAL COLLEGE, P.O, THIRUVANANTHAPURAM
DISTRICT, PIN - 695011
BY ADVS.
AJIT JOY
ANEESH JAMES
SAYUJYA
RESPONDENTS/STATE AND COMPLAINANT:
1 STATE OF KERALA
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 DR. S. GANAPATHY
AGED 73 YEARS
"ANJALI", MARUTHADI P.O KOLLAM, PIN - 691003
BY ADVS.
R2 BY R.RENJITH
SMITHA PHILIPOSE(K/592/2005)
DARSAN SOMANATH(K/150/2007)
P.R.JAYASANKAR(K/1637/2003)
R1 BY VIPIN NARAYAN, SR. PUBLIC PROSECUTOR

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
O R D E R
These Crl.M.Cs are filed by some of the accused
persons in C.C. No.498 of 2021 on the files of the
Judicial First Class Magistrate Court-IX Ernakulam. To
be precise, Crl.M.C No.1019/2022 is filed by the
accused Nos. 1,2,4,5,6 and 10, Crl.M.C No. 1010/2022 is
filed by the 12th accused, Crl.M.C No. 3048/2022 is
filed by the 13th accused, Crl.M.C No.798/2022 is by 11th
accused and Crl.M.C No.1995/2022 is filed by 8 th
accused. Altogether there are thirteen accused persons,
and the said case was instituted based on a private
complaint submitted by the 2nd respondent in Crl.M.C No
1019/2022. The prayers sought in all the Cr.M.Cs are to
quash all further proceedings in the said Calendar
Case, taken cognizance of by the learned Magistrate
based on the said private complainant. (For the sake of
convenience, the parties shall be hereinafter referred
to as per their respective status in the private
complaint. The Annexures shall be hereinafter referred
to, as mentioned in Crl.M.C No.1019/2022, unless

otherwise specifically mentioned).
2. The learned Magistrate has taken cognizance of
the offences based on the private complaint, which is
produced as Annexure-I, for the offences punishable
under 18, 20 and 21 of the Transplantation of Human
Organs and Tissues Act, 1994 (hereinafter referred to
as the TOHO & T Act) and sections 109,120B, 420, 468
read with section 34 of the Indian Penal
Code. The issues in these cases are in connection
with the declarations of brain death made by the
medical practitioners in the 1st petitioner Hospital
with the help of the other doctors empaneled by
Appropriate Authority constituted under the provisions
of the TOHO & T Act, of two patients named Sri Ajay
Johny, aged 19 years, and Adv Suresh, and the
transplantation of liver of the said Ajay Johny,
initially to Adv. Suresh and later to another patient.
3. The private complaint was submitted by the 2nd
respondent, with the following allegations: Adv Suresh
was a practicing lawyer before the High Court of Kerala
and was under treatment for Liver Cirrhosis at the

Aster Medcity Hospital, the 1st petitioner, since June,
2018. As a result of the treatment, he attained normal
liver functions. However, at 3.30 P.M on 4.03.2019, the
said Suresh and his wife were contacted over phone by
the 1st petitioner Hospital authorities, informing that
the liver of Sri.Ajay Johny was available for
transplantation and, therefore, the said Suresh was
required to get admitted in the hospital for the
purpose of transplantation of the liver to his body.
Ajay Johny was admitted to the hospital at 7 P.M on
2.03.2019 due to a road traffic accident as he
sustained serious head injuries. At the relevant time,
Adv. Suresh was at Changanasserry, and immediately, he
himself came to Ernakulam along with his wife and one
Sibichan, after driving his car, covering about 120 Kms
thereby reached Ernakulam and got admitted to the
Hospital. Upon getting admitted, Adv Suresh was asked
to deposit an amount of Rs 22,00,000/- Rupees twenty
two lakhs only) for liver transplantation. Accordingly,
they immediately deposited Rs.1,00,000/- and issued a
signed undated cheque for Rs.21,00,000/-.

4. Accused 2 to 7 and 10 are the doctors of the 1st
petitioner hospital, and they discussed the case of
Adv. Suresh, and accordingly, he was admitted to the
hospital at 8.50 P.M. on 4.03.2019. According to the
complainant, the doctors, i.e. Accused Nos 2 to 7 and
10, knew that Adv Suresh did not require liver
transplantation and was leading a normal life.
According to the complainant, compelling such a person
to undergo liver transplantation amounted to cheating.
It was also alleged that, at the time when Adv Suresh
was informed of the availability of the liver of
Sri. Ajay Johny, i.e. at 3.30. P.M. on 4.03.2019, the
said Ajay Johny was not declared brain dead and was
declared so only at 3.45 AM on 5.03.2019. Thus, Adv
Suresh was informed of the brain death of the said Ajay
Johny 12 hours before the declaration of his brain
death. According to the complainant, the same amounts
to the violation of the provisions of the TOHO & T Act,
the rules made thereunder, the decision taken at high
level meetings of the competent officers and the
Government orders issued in this regard,

including GO(MS) No.53/2018/2018/P7FWD dated 3.04.2018.
5. According to the complainant, the doctors who
certified the brain death of the said Ajay Johny was
not empowered to do so, and the certification issued by
them in this regard was invalid. The complainant also
points out certain shortcomings in carrying out the
tests for the purpose of declaration of brain death of
the said Ajay Johny. In short, the case of the
complainant in respect of the transplantation of the
liver of Sri.Ajay Johny is that the accused persons
hatched a conspiracy to remove the liver and his other
organs before his death to transplant the same to
Adv.Suresh, who did not require any liver
transplantation.
6. After the admission of Adv.Suresh, he was taken
to the operation theatre in the early morning of
5.03.2019 for transplantation surgery. It is averred in
the complaint that before he was taken, he suffered a
stroke close to midnight on 4.03.2019, and he was not
conscious when he was taken to the operation theatre.
Thereafter, the surgery was performed, but later when

Adv. Suresh was under observation in the post-operative
room, some medical complications developed and Suresh
died. The 2nd accused informed the wife of Adv. Suresh
at 2.30.PM on 6.03.2019 that he is brain dead and
persuaded her to donate the organs of her husband.
However, the said Suresh was declared brain dead only
at 6.46 PM, on 7.03.2019, and thus Adv.Suresh was
declared dead 16 hours before the actual declaration of
brain death. Thereafter the organs of the deceased
Suresh, including the liver, which was transplanted
from Ajay Johny, were again transplanted to another
patient. The complainant alleged various illegalities
and discrepancies in the brain death certification
process of the said Suresh, mainly in the conduct of
the Apnea test, which is one of the most important
tests in the brain death certification process, as
according to the complainant, the same was conducted by
incompetent persons and without following the proper
procedure. The procedure and the preparation of the
brain death certificate in Form 10, were not in a
proper manner. The allegations in brief, according to

the complainant, are that the declarations of brain
deaths of both the abovenamed persons were part of a
conspiracy between the accused persons, and the
transplantation surgery of Adv Suresh was unwanted as
he did not require any translation. Proper procedure as
contemplated under the TOHO & T Act, rules made
thereunder and other guidelines/directions issued by
the Government were also not complied with while
carrying out the process of tests for brain deaths and
the certifications thereof, which were also formed part
of the said conspiracy for the purpose of unlawful
gains, and thus all the accused have committed the
offences mentioned above.
7. The accused Nos 8 and 11, the petitioners in
Crl.MC No.1995/2022 and Crl.MC No.798/2012,
respectively, are Government Doctors and are also
empanelled doctors for conducting the brain death tests
and the certification thereof. The 13th accused is also
a Government Doctor and the Nodal Officer of Kerala
Networking for Organ Sharing (KNOS), who has to oversee
the brain death tests and the certification process.

KNOS is a system established to coordinate the organ
transplantation and they used to maintain the list of
persons who require organ transplantation and thereby
to ensure transparency in the matter of allotment of
organs. The 12th accused, the petitioner in Crl.MC No.
1010/2012 is a Neurologist of Amritha Hospital and
Medical Sciences, Ernakulam, and was a member of the
Board of Experts who certified the death of Ajay Johny.
8. The learned Magistrate, as part of the inquiry,
recorded the sworn statements of the complainant and
the wife of the deceased Suresh. Thereafter passed
Annexure 2 order, taking cognizance of the complaint
for the offences mentioned above, and issued summons to
the accused persons. These Crl.M.Cs are filed in such
circumstances by the petitioners herein for quashing
the proceedings. In response to the averments in the
Crl.MCs, detailed counter affidavits were also
submitted by the complainant.
9. Heard, Sri. S.Sreekumar, the learned Senior
Counsel, assisted by Sri.P.Jayabal Menon, learned
Counsel appearing for the petitioners in Crl.MC,

1019/2022, Sri. O.V. Maniprasad, the learned Counsel
for the petitioner in Crl.M.C No 1995/2022, Sri. Ajith
Joy, the learned counsel for the petitioner in Crl.MC
3048/2022, Sri.Harikrishnan S., the learned Counsel
for the petitioner in Crl.MC No.1010/2022, Adv. Laya
Mary Joseph, the learned Counsel for the petitioner in
Crl.MC No.798/2022, Sri.R.Renjith, the learned counsel
appearing for the 2nd respondent/complainant in all the
said cases, and Sri. Vipin Narayan and Seena C., the
learned Public Prosecutors appearing for the State.
10. In support of the prayer to quash the complaint
and all further proceedings pursuant to it, several
contentions have been raised by the respective
counsels, which shall be dealt with one by one in the
following part of this order. On the other hand, the
learned counsel for the complainant stoutly opposed all
the contentions raised by the petitioners.
11. Since one of the crucial contentions raised on
behalf of the accused was related to the
maintainability of the complaint, I deem it fit to
consider the said question first. The petitioners are

raising the said contention by placing reliance upon
the statutory stipulations contained in section 22 of
the TOHO and T Act. The said provision reads as
follows:
“Section 22 : Cognizance of offences:

(1) No Court shall take cognizance of an offence
under this Act except on a complaint made by
(a) the Appropriate Authority concerned, or any

officer authorised in this behalf by the Central
Government or the State Government or, as the case may
be, the Appropriate Authority; or
(b) a person who has given notice of not less than

sixty days, in such manner as may be prescribed, to
the Appropriate Authority concerned, of the alleged
offence and of his intention to make a complaint to
the court.
(2) No Court other than that of a Metropolitan

Magistrate or a Judicial Magistrate of the first class
shall try any offence punishable under this Act.
(3) Where a complaint has been made under clause

(b) of sub-section (1), the Court may, on demand by
such person, direct the Appropriate Authority to make
available copies of the relevant records in its
possession to such person.”
It is pointed out that, as per the stipulation therein,
a person has to give notice of less than sixty days, as
may be prescribed, to the Appropriate Authority of the
alleged offence of his intention to make a complaint to
the court and in this case, that requirement has not
been fulfilled. In response to the said contention, it

was pointed out by the learned counsel for the
complainant that, initially complaint/notice dated
14.05.2019 (Annexure A11) was submitted by the
complainant before the Appropriate Authority,
highlighting the acts committed by the accused persons
and the said copy is produced as Document NO 10 along
with the Annexure 1 complaint. Since there was no
action from the Appropriate Authority, a reminder dated
26.08.2019 has been sent, which is produced as Document
No 11 along with the complaint. Again, a further notice
was issued on 24.12.2019, which is Document No 12 in
the complaint. Later a fresh notice dated 6.01.2020 was
issued to the Appropriate Authority conveying his
intention to move the court, which is Document No 13 in
the complaint. Annexure 1 complaint is dated 13 th July,
2021. The copies of the said documents were made
available for perusal of this court, and I have
examined the same. From the said documents, it is
evident that the complaint was submitted by the 2 nd
respondent after fulfilling the stipulation contained
in section 22(1)(b) of the TOHO & T and Act, and

therefore, the contention raised by the petitioners
regarding the maintainability of the complaint is
liable to be rejected, and I do so.
12. Before going to the merits of the case, I deem
it proper to consider yet another contention raised by
the petitioners in Crl.MC Nos.3048/2022, Crl.M.C No.
798/2022 and Crl MC No.1995/2022. All the petitioners
in these Crl.MCs are Government Doctors who were roped
in as the accused in the said complaint in connection
with the acts during their discharge of official duties
as public servants. Therefore, before taking cognizance
of the offences against them, sanction from the
Government as contemplated under section 197 of the
Cr.P.C should have been taken. It is to be noted that
the 8th and 11th accused, the petitioners in Crl.MC
Nos.1995 and 798 of 2022 were implicated as they were
members of the Board of Medical Experts in their
capacity as empanelled doctors for the conduct and
certification of the brain death test of Advs. Suresh
and Ajay Johny, respectively. It is pointed out that
they were empanelled as competent doctors for the

certification process as per the notification published
by the Appropriate Authority under the TOHO and T Act,
as evidenced by Annexure 4(a). As far as the 13 th
accused is concerned, he was implicated as he allegedly
failed to carry out his duties as the Nodal Officer of
KNOS. Thus, it was contended that, as they were
implicated for doing some act in the discharge of their
official duties as a public servant, sanction under
section 197 Cr.P.C was a mandatory requirement before
taking cognizance, which was not complied with.
13. In response to the said contention, the learned
counsel for the complainant argued that, as per section
197 of the CrPC, the sanction is required only in
respect of public servants not removable from their
office save by or with the sanction of the Government.
According to the complainant, none among the accused
Nos 8, 11 and 13, would come under the said category,
and to substantiate the same certain appointment orders
of the Government Doctors were relied on to show that
the said orders were issued by the Director of the
Health Services. Besides the same, it was also

contended that, considering the fact that the offences
alleged against the said petitioners were for
committing criminal conspiracy to commit the offences,
under no circumstances it can be concluded that the
said act would come within the purview of the discharge
of their official duties. The learned Counsel for the
petitioner relies on the decisions rendered by the
Honourable Supreme Court in Harihar Prasad v. State of
Bihar [(1972) 3 SCC 89], S.B.Saha and others v. M.S
Kochar [(1979) 4 SCC 177] and R. Balakrishnan Pillai v
State of Kerala and another [(1996) 1 SCC 478].
14. In reply to the said contention, the learned
Counsel for the petitioner in Crl.MC 1995/2022, brought
the attention of this court to the provisions of
Kerala Health Service(Medical Officers) Special Rules
2010, which was formulated by the State Government in
the exercise of its powers under section 2(1) of the
Kerala Public Services Act, 1968, wherein various posts
of Medical Officers are mentioned. The Government
Doctors involved in this case are governed by the said
Special Rules. The learned Counsel also relies on

Kerala Civil Services(Classification, Control & Appeal)
Rules 1960 (hereinafter referred to as KCS(CC&A)
Rules), constituted by the State Government invoking
its powers under Article 309 of the Constitution of
India. As per rule 7 of the KCS (CC&A) Rules, the State
services shall consist of the services included in
Schedule-I of the said rules. As per entry 15 of
Schedule-1 thereof, the Kerala Health Service is
included in the State Service. It is evident that, as
per rule 9 of thereof, all appointments to the State
and Subordinate services, shall be made by the
Government. Rule 11(1) of Part V of the KCS (CC&A)
Rules, deals with the penalties that can be imposed
upon the Government servant in which sub clause (viii)
thereof mentions the termination of services. Rule
13(1) thereof contemplates that the Government may
impose penalties specified in terms (i) and (iii) to
(viii) of rule 11(1). Thus, it is evident that, the
removal of the doctors, who are Government Servants,
are removable from the service by the Government, and
therefore, the contention raised by the learned counsel

for the complainant, in this regard is liable to be
rejected.
15. The next contention raised by the complainant
in this regard is that since the offence alleged
against the Government Doctors is for criminal
conspiracy, the same cannot be treated as an act
committed in the discharge of their official duty and,
therefore, no protection under section 197 of the Cr.
P.C can be extended to them. The learned counsel for
the complainant placed reliance on the observations
made by the Honourable Supreme Court in para 66 of
Harihar Prasad’s case (supra), a case wherein it was
observed that it is no part of the duty of a public
servant while discharging his official duties, to enter
into a criminal conspiracy or to indulge in criminal
misconduct. In R. Balakrishna Pillai’s case (Supra),
the aforesaid observations were followed. However, both
said issues dealt with the misappropriation of
Government funds under the Prevention of Corruption
Act. In Harihar Prasad’s case (supra), a clear
distinction has been made by observing that, “As far

as the offence of criminal conspiracy punishable under
section 120B read with section 409 of Indian Penal
Code is concerned, and also Section 5(2) of the
prevention of Corruption Act are concerned they cannot
be said to be of the nature mentioned in Section 197 of
the Code of Criminal Procedure….” Similarly, in S.B
Saha’s case (supra), it was observed as follows:
“18. In sum, the sine qua non for the applicability of

this section is that the offence charged, be it one of
commission or omission, must be one which has been
committed by the public servant either in his official
capacity or under colour of the office held by him.
19. While the question whether an offence was committed

in the course of official duty or under colour of
office, cannot be answered hypothetically, and depends
on the facts of each case, one broad test for this
purpose, first deduced by Varadachariar, J. of the
Federal Court in Dr Hori Ram v. Emperor [1939 FCR 159 :
AIR 1939 FC 43] , is generally applied with advantage.
After referring with approval to those observations of
Varadachariar, J., Lord Simonds in H.H.B. Gill v. King
[AIR 1948 PC 128] tersely reiterated that the “test may
well be whether the public servant, if challenged, can
reasonably claim, that what he does, he does in virtue
of his office”
20. Speaking for the Constitution Bench of this Court,

Chandrashekhar I Aiyer, J., restated the same
principle, thus:
In the matter of grant of sanction under
Section 197, the offence alleged to have been
committed must have something to do, or must
be related in some manner, with the discharge
of official duty .... There must be a
reasonable connection between the act and the
dis-. charge of official duty; the act must
bear such relation to the duty that the
accused could lay a reasonable but not a
pretended or fanciful claim, that he did it in
the course of the performance of his duty.
(emphasis supplied)
16. Similarly, in Pukhraj v State of Rajasthan
[(1973) 2 SCC 701], it was observed by the Honourable
Supreme Court in paragraph 2 as follows:
“2.The law regarding the circumstances under which

sanction under Section 197 of the Code of Criminal
Procedure is necessary is by now well settled as a
result of the decisions from Hori Ram Singh's case[AIR
1939 FC 43 : 1939 FCR 159 : 40 Cri LJ 468] to the
latest decision of this Court in Bhagwan Prasad
Srivastava v. N.P. Misra[(1970) 2 SCC 56 : (1971) 1 SCR
317] . While the law is well settled the difficulty
really arises in applying the law to the facts of any
particular case. The intention behind the section is to
prevent public servants from being unnecessarily
harassed. The section is not restricted only to cases
of anything purported to be done in good faith, for a
person who ostensibly acts in execution of his duty
still purports so to act, although he may have a
dishonest intention. Nor is it confined to cases where
the act, which constitutes the offence, is the official
duty of the official concerned. Such an interpretation
would involve a contradiction in terms, because an
offence can never be an official duty. The offence
should have been committed when an act is done in the
execution of duty or when an act purports to be done in
execution of duty. The test appears to be not that the
offence is capable of being committed only by a public
servant and not by anyone else, but that it is
committed by a public servant in an act done or
purporting to be done in the execution of duty. The
section cannot be confined to only such acts as are
done by a public servant directly in pursuance of his
public office, though in excess of the duty or under a
mistaken belief as to the existence of such duty. Nor
need the act constituting the offence be so inseparably
connected with the official duty as to form part and
parcel of the same transaction. What is necessary is
that the offence must be in respect of an act done or
purported to be done in the discharge of an official
duty. It does not apply to acts done purely in a
private capacity by a public servant. Expressions such
as the “capacity in which the act is performed”, “cloak
of office” and “professed exercise of the office” may
not always be appropriate to describe or delimit the
scope of section. An act merely because it was done
negligently does not cease to be one done or purporting
to be done in execution of a duty. In Hori Ram Singh
case Sulaiman, J. observed:
“The section cannot be confined to only such
acts as are done by a public servant directly
in pursuance of his public office, though in
excess of the duty or under a mistaken belief
as to the existence of such duty. Nor is it
necessary to go to the length of saying that
the act constituting the offence should be so
inseparably connected with the official duty
as to form part and parcel of the same
transaction.”
In the same case Varadachariar, J. observed: “there
must be something in the nature of the act complained
of that attaches it to the official character of the
person doing it”. In affirming this view, the Judicial
Committee ofthe Privy Council observed in Gill [AIR
1948 PC 128 : 1948 LR 75 IA 41 : 49 Cri LJ 503] case:
“A public servant can only be said to act or purport
to act in the discharge of his official duty, if his
act is such as to lie within the scope of his
official duty…. The test may well be whether the
public servant, if challenged, can reasonably claim
that, what he does in virtue of his office.”
In Matajog Dobey v. H.C. Bhari[AIR 1955 SC 44 :
(1955) 2 SCR 925 : 1956 Cri LJ 140] the Court was of
the view that the test laid down that it must be
established that the act complained of was an
official act unduly narrowed down the scope of the
protection afforded by Section 197. After referring
to the earlier cases the Court summed up the results
as follows:
“There must be a reasonable connection
between the act and the discharge of
official duty; the act must bear such
relation to the duty that the accused could
lay a reasonable, but not a pretended or
fanciful claim, that he did it in the
course of the performance of his duty.”
Applying this test it is difficult to say that the acts
complained of i.e. of kicking the complainant and of
abusing him, could be said to have been done in the
course of performance of the 2nd respondent's duty. At
this stage all that we are concerned with is whether on
the facts alleged in the complaint it could be said that
what the 2nd respondent is alleged to have done could be
said to be in purported exercise of his duty. Very
clearly it is not. We must make it clear, however, that
we express no opinion as to the truth or falsity of the
allegations.”
In State of Madhya Pradesh v. Sheetla Sahai and others [ (2009)
8 SCC 617], it was observed by the Honourable Supreme Court that
“ The offence alleged to have been committed must have something
to do, or must be related in some manner, with the discharge of
official duty. No question of sanction can arise under section
197, unless the act complained of is an offence; the only point
to determine is whether it was committed in discharge of
official duty. There must be a reasonable connection between the
act and the official duty. It does not matter even if the act
exceed what is strictly necessary for the discharge of the duty
as this question will arise only at a later stage when the trial
proceeds on the merits.”
17. From the observations above, it is evident that
anything done by a public servant in the discharge of
his duty or in the purported discharge of the duty
would come under the protective umbrella of section 197
of the Cr.P.C. In this case, as mentioned above,
accused Nos 8 and 11 were members of the Board of

Medical Experts formed for certifying brain death, and
they were entrusted with the said task as they were
doctors empanelled for the said purpose by a statutory
authority. Similarly, the 13th accused was the Nodal
Officer for KNOS, who was entrusted with the task of
monitoring the brain death certification process. The
offences alleged to have been committed by them while
they were in discharge of the said duties, and
therefore, they are entitled to protection as
contemplated under section 197 of the Cr.P.C. In this
case, admittedly, the learned Magistrate has taken
cognizance of the offences against the said accused
without obtaining permission from the Government under
section 197 of the Cr.P.C. Therefore, the order of
taking cognizance is without following the mandatory
requirement of section 197 and hence all further
proceedings against the accused Nos 8,11 and 13, are
liable to be quashed on that sole ground.
18. Now, when coming to the other contentions of
the petitioners/accused, it is to be noted that one of
the crucial contentions raised by the learned Senior

counsel for the petitioners is that the offence under
section 18 of the TOHO & T Act, would not be attracted
in this case, as the said provision prohibits
transplantation without the authority. It is pointed
out that the 1st petitioner hospital has got the
registration for conducting the organ transplantation
surgeries as contemplated under sections 14 and 15 of
the Human Organs Act. The registration certificate of
the Hospital is produced as Annexure 15. Moreover,
section 3 of the TOHO & T Act, provides for the
‘authority’ for removal of human organs and tissues or
both. It can be seen that a detailed procedure has been
contemplated therein through which the consent of the
donor is to be obtained for organ removal, which
constitutes the authority. Sub-section 6 of section 3
deals with the removal of the organ from a body of a
person in the event of a brain-stem death. The said
provision reads as follows:
“Section 3; Authority for removal of human organs or

tissues or both
………………………………………
(6) Where any [human organ or tissue or both] is to be
removed from the body of a person in the event of his
brain-stem death, no such removal shall be undertaken
unless such death is certified, in such form and in
such manner and on satisfaction of such conditions and
requirements as may be prescribed, by a Board of
medical experts consisting of the following,
namely :--
(i) the registered medical practitioner in charge of

the hospital in which brain-stem death has occurred;
(ii) an independent registered medical practitioner,

being a specialist, to be nominated by the registered
medical practitioner specified in clause (i), from the
panel of names approved by the Appropriate Authority;
(iii) a neurologist or a neurosurgeon to be

nominated by the registered medical practitioner
specified in clause (i) from the panel of
names approved by the Appropriate Authority;
[Provided that where a neurologist or a neurosurgeon is

not available, the registered medical practitioner may
nominate an independent registered medical
practitioner, being a surgeon or a physician and an
anaesthetist or intensivist subject to the
condition that they are not members of the
transplantation team for the concerned recipient and
to such conditions as may be prescribed;]
(iv) the registered medical practitioner treating the

person whose brain-stem death has occurred.”
Thus, it is evident that, in order to constitute the
offence under section 18 of the Act, the
transplantation must have been conducted without the
authority. Lack of authority can be on account of two
reasons, i.e. at first, the transplantation is
conducted in a hospital without registration. Since a
transplantation by a hospital without registration
under section 15 is specifically prohibited under 14 of
the Act, a transplantation in such a hospital without

registration would attract the offence under section 18
of the Act. In this case, it is an undisputed fact that
the 1st accused hospital is a registered hospital under
section 15 of the Act, and hence, the lack of authority
on that ground cannot be alleged against any of the
accused. The second instance is lack of authority as
contemplated under section 3, in this case
particularly, under sub-section (6) thereof. The said
provision contemplates a detailed procedure for
certification of brain death, which is a mandatory
pre-requisite for the transplantation of the organs.
Therefore, the question that emerges in this case is as
to whether the certification as contemplated under the
Act and the rules were conducted or not. If a valid
brain-stem death certification was not conducted, the
transplantation of organs based on such certification
could be treated as an instance of doing it without
authority, warranting a prosecution under section 18 of
the Act.
19. In this case, the brain-stem death
certification was done on two occasions, i.e. initially

that of Ajay Johny and secondly that of Adv. Suresh. It
is evident from the records that, for the purpose of
certification of the brain-stem death of Ajay Johny, a
Board of Expert Panel of four members as contemplated
under section 3 (6) of the Act was constituted with the
following members:
i) Dr. Arun RMP in charge of Aster Medcity,
Ernakulam (3rd accused)
ii) Dr.Vivek Nambiar, Clinical Associate Professor,
Amrita Institute of Medical Sciences, Ernakulam (12th
accused)
(iii) Dr. Shejoy.P.Joshua, Consultant-Neuro Surgery,
Aster Medcity, Ernakulam (10th accused)
(iv) Dr. Rakhi R.R, Consultant (General Medicine),
General Hospital, Muvattupuzha (11th accused)
The brain stem death was certified by the said medical
practitioners, and all of them are competent for the
said purposes. The accused nos 10, 11 and 12, are
doctors included in the panel published by the
appropriate authority for the purpose of brain death
certification. It is to be noted in this regard that,

as per Annexure-3, the State Government issued a
Government order stipulating the guidelines to be
followed while certifying brain death. It is the
specific case of the petitioners that the expert panel
conducted all the tests contemplated under section 3
(6) of the Act, read with Rule 5 (4) (c) and (d) of
Transplantation of Human Organs and Tissues Rules 2014
and issued a certificate under Form 10, which was
signed by all the members of the Board of Experts by
entering all the details as required in the form of
certification. Annexure 5 is the brain death
certificate of Sri. Ajay Johnny in Form 10. The said
form contains all the parameters mentioned in the said
Act and rules. It is also signed by all the members of
the Board of Experts.
20. The complainant is pointing out certain
discrepancies in the test and certification process of
the brain death of Ajay Johny. One of the crucial
aspects pointed out by the complainant is that Dr.
Rakhi, the 11th accused, who was Government Doctor who
participated in the test, was not competent to certify

brain death, as she is not a neurologist. However, it
is a fact that she was included in the panel prepared
by the Appropriate Authority for brain death
certification, and therefore, the 1st accused hospital
or any other accused cannot be found at fault for
availing her services. Another aspect highlighted is
that the complainant expresses surprise and suspicion
in bringing the 11th accused, who was working at
Muvattupuzha, which is 35 Km away from the 1st accused
Hospital, to certify the brain death, even though there
were several other empanelled doctors in Ernakulam.
However, it is evident from the proceedings of the
District Medical of Health Ernakulam dated 01.01.2019
(Order No C6-5165/17/DMOH/EKM), a copy of which is
produced as Annexure 1 in Crl.M.C 1995/2022 that, each
empanelled doctors were assigned with the duty in
relation to brain death certification, for a continuous
period of 24 hours on various dates as per the schedule
contained therein. As per the said schedule, the
empanelled doctor on duty for Ernakulam was the 11 th
accused for the period from 4.03.2019 at 8 am to 8.AM

on 5.03 2019 and this case the certification took place
during the said time. This explains the reason why the
11th accused was included as one of the members of the
Board of Experts for the brain death certification of
Ajay Johny, which took place in the early hours of
05.03.2019. Thus, it is evident that the 11 th accused
was not a conscious choice of the other accused/doctors
for the brain death certification, but she was their
only option as per the schedule prescribed by the
authorities concerned. Other discrepancies are with
regard to the documentation of Form 10, such as the
signature of doctors were not found on all the pages of
the Form 10, lack of official seal of the 11 th accused,
failure to fill up a column in “Coma” in the Form 10,
non-mentioning of the time of death, etc. I do not find
those discrepancies as something of much significance,
particularly when it comes to the question of the
necessity of prosecution for any of the offences under
the TOHO & T Act. When it is shown that the
transplantation was done in a Hospital having
registration under section 15 of the Act, and after the

declaration of the brain death of the donor by
conducting the tests as contemplated under the Act and
rules by the Board of Experts mentioned in Subsection
(6) of Section 3 of the Act, and certified in Form 10
signed by all the members of the Board of Experts, it
cannot be concluded that the transplantation was
conducted without any authority. It is to be noted in
this regard that the offence under section 18 of the
TOHO & T Act would be attracted only if the
transplantation was done without the authority.
Therefore, as far as the discrepancies highlighted by
the complainant with regard to the certification
process of the brain death of Ajay Johny are concerned,
I do not find any reasonable grounds for attracting the
offence under section 18 of the Act.
21. The next point to be considered is with
respect to the allegations relating to the brain death
certification of Adv.Suresh, for attracting the
offences under the provisions of the TOHO & T Act. One
of the crucial discrepancies highlighted by the
complainant is that the Hospital authorities contacted

Adv Suresh at 3.30 PM on 4.03.2019 and was informed
that the liver of Sri. Ajay Johny was available for
transplant and he was required to get himself admitted
to the hospital urgently to undergo surgery. However,
Sri. Ajay Johny was declared brain dead only at 3.45 AM
on 5.03.2019, and thus, Adv. Suresh was informed of the
availability of liver of Ajay Johny before he was
declared brain dead.
22. The contention of the petitioners in response
to the said allegation is as follows; Sri. Ajay Johny
was admitted to the hospital in a coma stage due to a
road accident that occurred on 2.03.2019 at 7.00 PM. On
3.03.2019 at 9.16 A.M, a non-reversible coma was
detected. The same was informed to relatives of the
said Ajay Johny, and they were also informed of their
option to grant permission to donate the organs of the
said Ajay Johny. Since the relatives expressed their
consent to donate the organs, the process of
certification was initiated by following the procedure
in this regard. It is to be noted that Adv. Suresh was
a patient of the 1st petitioner hospital and was on the

waiting list maintained by the Kerala Network for
Organ Sharing (KNOS), constituted by the Government to
supervise and coordinate organ transplantations.
Therefore, Adv. Suresh was informed of a possible offer
for transplantation of liver from KNOS, in advance,
with the intention to commence the procedure for
transplant without delay once the brain death
certification process of Ajay Johny was over.
Therefore, it was pointed out by the learned counsel
for the petitioners that merely because of the fact
that, Adv Suresh was informed in advance, anticipating
the brain death declaration of Ajay Johny, the offences
under the TOHOT Act would not be attracted.
23. On evaluating the materials, I find some force
in the said contention. This is mainly because the
complainant does not have a case that the procedure for
removal of the liver of Ajay Johny and transplantation
of the same to Adv. Suresh were commenced before the
brain death certification process of Sri. Ajay Johny
was over. It is an undisputed fact that Ajay Johny was
declared brain dead as per Form 10 at 3.45 A.M. on

5.03.2019, and the surgery of Adv. Suresh took place
thereafter. The stipulation in section 3 (6) of the Act
is to the effect that no removal of an organ shall be
undertaken unless the brain death is certified in such
manner and on the satisfaction of such conditions and
requirements as may be specified. In this case, as far
as the certification of the brain death of Ajay Johny
is concerned, it is evident that brain death was duly
certified by competent members of the Board of Experts
as contemplated under section 3(6) and a certificate in
Form 10 (Annexure 5) signed by all the said members was
also issued. In the said Form 10, all the details of
the tests required to be made as per the Act, rules and
the Government Order issued in this regard (Annexure 3)
are incorporated. There is nothing to indicate that no
such tests were carried out, and the organ was removed
before the said tests were conducted.
24. Now, when coming to the brain death
certification of Adv Suresh, another crucial contention
raised by the complainant is that the same was
conducted by persons not competent in this regard. The

said contention was raised mainly in respect of the
Apnea test of Adv Suresh. It is to be noted in this
regard that as per Annexure A3 Government Order, a
detailed procedure has been prescribed for brain death
certification, which contains three steps. The Apnea
test is the third and final step of the said test. It
is for confirming brain death because it provides an
essential sign of definitive loss of brain-stem
functions. In the case of Adv Suresh, three Apnea tests
were conducted, whereas, as per the certification
process, two such tests with a minimum interval of six
hours are to be conducted. Annexure 9 is the brain
death certificate in Form 10 of Adv Suresh, wherein two
tests were reportedly conducted; the 1st one at 8.30
P.M. on 6.03.2019 and the 2nd one at 6.46 A.M. on
7.03.2019. The said tests were conducted by the members
of the Board of Experts, consisting of the following
persons;
i) Dri Deepak Venugopal, RMP in charge of Aster
Medcity (7th accused)
ii) Dr Raj Anderson Correya, Junior Consultant,

Taluk head Quarter Hospital, Fort Kochi (8th accused)
iii) Dr. Prthvi Varghese, Consultant Neurologist,
Lakeshore Hospital (9th accused)
iv) Dr. Shejoy.P.Joshua Consultant- Neuro Surgery,
Aster Medcity (10th Accused)
However, as per the records of the Hospital, three
Apena tests were seen conducted, as evidenced by
Annexure 19 series documents. The 1st test was conducted
by Dr Sangeeth, the 6th accused, at 1.25 P.M on
6.03.2019, the 2nd and 3rd tests by Dr Rajesh Rajgopal,
the 5th accused, at 8.40 P.M on 6.03.2019 and at 6.59
A.M on 7.03.2019. Thus, by placing reliance upon the
same, it was pointed out by the learned counsel for the
complainant that none of the said doctors was competent
to carry out the Apnea tests, and they were not the
members of the Board of Experts constituted for the
brain death certification of Adv Suresh. It was also
pointed out that, even though, as per Form 10, the
tests were reportedly conducted on two occasions by the
members of the Board of Experts, as per Annexure 19,
the Apnea tests were conducted with differences in

timing, extending only certain minutes. According to
the complainant, this indicates some foul play on the
part of the accused, and according to him, no proper
test as stipulated in the Act and rules were conducted.
25. In response to the said contention, the learned
counsel for the petitioners/accused submits that the 1st
test conducted by Dr Sangeeth was to ascertain the
condition of the said Suresh, by the Hospital. The 2nd
and 3rd tests were conducted by members of the Board of
Experts, and the Annexure 19 documents were maintained
for the purpose of records of the Hospital. According
to them, as regards 2nd and 3rd tests, no separate tests
other than what is conducted by the Board of Experts
were conducted. It is also pointed out that, as per the
guidelines issued by the Government in this regard, the
entire tests conducted were recorded in video. The
learned counsel also made available the pen drive
containing the video footage of the same for
examination by this court. With regard to the
competence of the 5th and 6th accused to conduct Apnea
tests, it was pointed out that both of them were

empanelled doctors, as is discernible from Annexure
4(b) list prepared by the Appropriate Authority wherein
they were shown as Serial Nos 52 and 48 respectively.
26. After considering all the said materials in
connection with the same, I am of the view that,the
contention raised by the learned counsel for the
petitioners cannot be brushed aside. It is true that
there is some difference in the timings of Apnea tests
mentioned in Annexure 19 and Annexure 9. However, the
difference is not very significant. It is to be noted
that as per Annexure 9, the timings of the tests are;
the 1st test 8.30 P.M. on 6.03.2019 and the 2nd one at
6.46 A.M. on 7.03.2019. As per A19, as regard the test
referred to Annexure 9, time of pre-test was conducted
on 6.03.2019 at 8.25 PM, the commencement of the test
is shown as 8.40 P.M and the end of the test was shown
as at 8.50 P.M. Similarly, in Annexure A19, with regard
to the 2nd test referred to Annexure 9, the time of pre-
test is shown as at 6.45 A.M on 7.03.2019, the time of
commencement of the test was shown as 6.57 A.A, and the
time of end of the test is shown as 7.11 A.M. By

placing reliance upon the same it was contended by the
learned counsel for the petitioners that, the mandatory
interval of six hours was not maintained between the
two tests, as contemplated. However, I do not find any
justifiable reason to accept the said contention. It is
true that, as per the timings mentioned in Annexure A9
and A19 there is some marginal difference. However, as
far as the Annexure 9 document is concerned, the
specific case of the petitioners is that, it was
something maintained by the hospital for their
purposes. The exact timings are that mentioned in the
Annexure A9 (Form 10),which is the official
certification made by competent persons. It is also
asserted by the petitioners, including the independent
members of the Board of Medical Experts,that, they
have conducted the tests by following the
guidelines and the protocols in this regard
and the entire procedure has been videographed. In
this regard it is to be noted that, even if it is
assumed for argument’s sake that there is some
discrepancy in the above, that cannot lead to the

conclusion that, no Apnea tests at all were conducted.
On the other hand, there are ample materials, to show
that Board of Medical Experts have conducted the tests
and certified the same in the prescribed form.
Moreover, the difference in the timings between
Annexure A9 and A19 are very small, (only some minutes)
and therefore, it can only be treated as a minor
discrepancy in the recording of the process of the
certification procedure, in the absence of any other
materials. Since such tests were conducted in the
presence of a Board of Medical Experts, as stipulated
in the Act, by the Appropriate Authority, constituted
by the very same statute, consists of the independent
doctors, including a Government Doctor specifically
empowered on this behalf, I do not find any justifiable
reason to accept such a minor discrepancy as something
which would warrant a prosecution for the offences
punishable under any of the provisions of the TOHO & T
Act. Another crucial aspect to be noted in this regard
is that, the complaint of the 2nd respondent/complainant
as to the alleged irregularities was already considered

by the Appropriate Authority, and they arrived at the
finding that, in the certification of Sri Suresh, they
could not find any malpractices. This is an aspect
which fortifies the view that, there is no scope for
prosecution with regard to the conduct of the Apnea
tests
27. Apart from the above discrepancies in the
conduct of Apnea tests, the complainant also raised
certain other aspects highlighting non-compliance with
the procedure contemplated in the Act, rules and
Government order. The said aspects are mainly related
to the method of certification, lack of official seal
of the doctor, lack of signature on all the pages of
the report, and lack of time of death in Form 10; the
difference in the signature of Dr Shijoy P.Joshua(10 th
accused), on the different places of Form 10 etc. On
careful scrutiny of the same, those are also minor
discrepancies in carrying out the paperwork relating to
the certification process. Under no circumstances would
the same attract any culpability under sections 18 or
20 of the Act. As regards the contention of non-

recording of time of death in the certificate, I find
that in Form 10, no column is specified for the said
purpose. It is pointed out in this regard that, for all
purposes, the time of completion of the 2nd Apnea test
is treated as the time of death. Hence the same cannot
be treated as a major discrepancy, warranting a
prosecution.
28. In this regard, it is also to be noted that, in
response to the complaint submitted by the complainant
before the Appropriate Authority (Annexure 11(a)), all
the above discrepancies are highlighted. Based on the
same, an inquiry was conducted by the Core Committee
constituted by the Appropriate Authority and Annexure
A11(b) report was submitted, answering all the points
raised by the complainant in respect of the procedure
conducted for certification of brain deaths of Ajoy
Johny and Adv Suresh. However, even though said report
finding on all the issues raised by the complainant
were recorded, they did not suggest any prosecution
against any of the Medical professionals involved.
Further, based on the said inquiry report, Appropriate

Authority issued Annexure 11 (c) to the 1st petitioner
hospital. In the said communication, even though
certain minor discrepancies were found in the
documentation, it was specifically observed that the
Appropriate Authority could not find any malpractice in
the liver transplantation of Adv Suresh. Therefore a
warning was issued to the 1st respondent by stating that
if any irregularities were found in future, the
registration would be cancelled. Thus in the light of
the finding of the Appropriate Authority also, the
contentions raised by the complainant are liable to be
rejected.
29. It is to be noted that one of the offences
alleged against the petitioners is under section 20 of
the TOHO & T Act, which reads as follows:
“Section 20-Punishment for contravention of any other

provision of this Act: Whoever contravenes any
provision of this Act or any rule made, or any
condition of the registration granted, thereunder for
which no punishment is separately provided in this Act,
shall be punishable with imprisonment for a term which
may extend to 1[five years or with fine which may
extend to twenty lakh rupees].”
While considering the nature of the allegations raised
in the complaint, and also in the light of the findings
in Annexure A11 (b) and (c) of the Appropriate

Authority, I am of the view that there are no materials
justifying the prosecution for the said offence. From
the materials placed on record, I am unable to find any
specific instances of non-compliance with any
provisions of the TOHO & T Act, or rules made
thereunder, apart from certain discrepancies in the
documentation of the certification process. Therefore,
under no circumstances the same would warrant a
prosecution either under section 18 or under section 20
of the TOHO & T Act.
30. In Annexure 2 order, the learned Magistrate
took cognizance of the offence under sections 109,
120B, 420, 468, read with 34 of the Indian Penal Code.
One of the grounds for attracting the offence under
section 420 of the IPC is that, according to the
complainant, Adv Suresh did not require the liver
transplant, as he attained normal liver functions due
to treatment. The only materials supporting the
allegation are the statements of the complainant and
the wife of the said Suresh. On the contrary, it is an
undisputed fact that Adv. Suresh has been undergoing

treatment for liver cirrhosis since 2015, and in the
year 2018, doctors suggested transplantation of their
liver. The details of the tests undergone by him are
contained in Annexure 6. According to the petitioners,
even though the wife of the said Suresh came forward as
a potential donor, it was not suitable for Sri Suresh.
Therefore, as no viable living donors were available,
Sri Suresh got himself registered with Kerala Network
for Organ Sharing (KNOS), constituted by the Government
of Kerala and also with “Jeevasarthakathe” constituted
by the Government of Karnataka and was awaiting his
turn for transplantation. Upon being informed of a
possible offer for a liver transplant, he got himself
admitted to the 1st accused Hospital and underwent
surgery. These aspects are not disputed by the
complainant, and even though, medical reports of Sri
Suresh were produced as Annexure A6, no contentions in
relation to the said document were raised by the
complainant before this court, to substantiate his
contention that, the said Suresh actually never
required Liver transplant. Moreover, before undergoing

the procedure, Sri. Suresh and his wife, who was
examined as PW2 before the learned Magistrate, signed
all the necessary consent forms for the said purpose.
In the light of the above, the aforesaid contention is
only to be rejected.
31. Now, when coming to the other allegations for
attracting the offence under section 420 of the IPC
raised by the complainant are that, as the
certification of brain deaths of both Ajay Johny and
Suresh was not properly conducted, they were actually
not brain dead at the relevant time, and since the
transplantation of organs was done by making a false
impression upon the relatives of the patients that they
were brain dead, it amounts cheating. In this regard, I
have already found that, apart from some minor
discrepancies in the documentation of the certification
process, there is nothing to indicate that the brain
death tests were not conducted. Therefore on that
grounds, the offence under section 420 of IPC would not
be attracted.
32. The offence under section 468 is mainly alleged
against the 6th accused, as the said certification of
the brain death of Sri Suresh was signed by him without
his initial surname qualification and TMC Registration
numbered. The official seal was also not mentioned.
Therefore it is alleged that the said certificate is
forged, and since the same allegedly relied on by him
to persuade the relatives of the patient, he is alleged
to have committed the offence under section 468 of the
IPC. However, the crucial aspect to be noticed in this
regard is that the Apnea test and other tests were
certified by the members of the Board of Experts
specifically constituted for the said purpose in Form
10. Therefore the certificate allegedly issued by the
6th accused has no significance at all. Moreover, even
otherwise the issuance of the certificate would not
attract the offence under section 468 of the IPC.
“Forgery” is defined under section 463 of the IPC,
which reads as follows:
Section 463 – Forgery:

Whoever makes any false documents or false electronic
record or part of a document or electronic record with
intent to cause damage or injury], to the public or to any
person, or to support any claim or title, or to cause any
person to part with property, or to enter into any express
or implied contract, or with intent to commit fraud or that
fraud may be committed, commits forgery.
The essential ingredient for forgery is the making of
false documents, which is defined in section 464. The
said provision reads as follows:
“464. Making a false document.-[A person is said to make

a false document or false electronic record -
First.- Who dishonestly or fraudulently -

(a) makes, signs, seals or executes a document or part of
a document;
(b) makes or transmits any electronic record or part of
any electronic record;
(c) affixes any [electronic signature] on any electronic
record;
(d) makes any mark denoting the execution of a document or
the authenticity of the [electronic signature].
With the intention of causing it to be believed that such
document or part of document, electronic record or
[electronic signature] was made, signed, sealed, executed,
transmitted or affixed by or by the authority of a person
by whom or by whose authority he knows that it was not
made, signed, sealed, executed or affixed; or
Secondly.- Who, without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a
document or an electronic record in any material part
thereof, after it has been made, executed or affixed
with[electronic signature] either by himself or by any
other person, whether such person be living or dead at the
time of such alteration; or
Thirdly.- Who dishonestly or fraudulently causes any
person to sign, seal, execute or alter a document or an
electronic record or to affix his [electronic signature]
on any electronic record knowing that such person by
reason of unsoundness of mind or intoxication cannot, or
that by reason of deception practised upon him, he does
not know the contents of the document or electronic record
or the nature of the alteration.]”
An act could be treated as making a false document when
the same was dishonestly or fraudulently created with

the intention of causing to be believed that such
document or part of the document was made, signed,
sealed or executed, transmitted or affixed by or by the
authority of a person, by whom or by whose authority he
knows that it was not made signed or sealed executed or
affixed. Thus there must be impersonation, i.e. a claim
that the same was issued by someone else or with the
authority of someone else. In this case, there are no
such averments in the complaint. On the other hand, the
allegation is that, while issuing the Apnea test
certificate, he did not mention his initials, surname,
qualification, TCMC registration certificate, etc. That
allegation is also not something which would make out
the offence under section 464 of the IPC, as even as
per the allegations, he never claimed that the same was
executed by someone else; thus the question of
impersonation does not arise. Therefore, the offence of
section 468 of IPC would not be attracted.
33. Similarly, the accused No 7 to 10 were
arraigned as accused on the mere allegation that they,
being the members of the Board of Experts, did not

conduct the Apnea test. It was also averred in the
complaint that, even if they have conducted it, it was
done in total violation of the provisions of the Act.
Thus it is evident that the complainant has no
consistent case concerning the question whether they
have conducted the Apnea test or not. Moreover, I have
already found that, from the materials, only minor
discrepancies in the documentation of the tests alone
are revealed. The materials produced before this court
include the certification in Form 10, conducted by
competent members of the Board of Medical Experts
specifically constituted in this regard. In both the
said certification processes, one of the members was
Government Doctors (Accused Nos 11 and 8 respectively),
who happened to be included in the Board of Experts not
by choice of the other accused but because they
happened to be on duty as per schedule published by the
authorities concerned in this regard, for the relevant
dates. The statutory complaint submitted by the
complainant before the Appropriate Authority was
considered, and all the points raised by the

complainant were answered, but despite such an inquiry,
no prosecution was suggested. On the contrary, a
specific finding was entered into, to the effect that
there were no malpractices. In such circumstances, the
contention raised by the learned counsel for the
petitioner that no tests were conducted cannot be
accepted, as there is nothing to disbelieve the said
documents and the declaration contained therein. The
veracity of the same need not be doubted merely because
the complainant raised certain allegations in this
regard, when there are no materials to substantiate the same.
34. The complainant, although raised another allegation
that, before Sri Suresh was taken to the surgical
proceedings, he suffered a stroke and was unconscious.
It was alleged that the Doctors proceeded with the
transplantation procedure, despite the same. However,
apart from mere allegation, there is nothing on record
to show the same, and in the absence of any materials
to establish the same even prima facie, I am not
inclined to accept the same.
35. The learned Counsel for the complainant

vehemently contended that the complaint is only in its
preliminary stage, and no interference at this stage by
this court be made invoking the powers under section
482 of the Cr.P.C. It was pointed out that the learned
Magistrate applied his mind and found a prima facie
case, and the cognizance of the offences was taken. The
veracity of the allegations is to be considered at the
time of trial based on evidence adduced, and it cannot
be considered at this stage. He relies on the
observations made by the Honourable Supreme Court in
Neeharika Infrastructure Pvt Ltd (M/s) v. State of
Maharashtra and Others [AIR 2021 SC 1918]
36. It is true that in Neeharika’s case, the
Honourable Supreme Court framed certain guidelines with
regard to the exercise of the powers under section 482
of Cr.P.C in the matter of quashing the FIR/complaints.
It was also observed that when examining the
FIR/complaint, the court cannot embark upon an enquiry
as to the reliability or genuineness or otherwise of
the allegation made in the FIR/Complaint. It is also
observed in the said decision that“However, at the same

time, the Court, if it thinks fit, regard being had to
the parameters of quashing and the self-restraint
imposed by law, more particularly the parameters laid
down by this Court in the cases of R.P Kapur(supra) and
Bhajan Lal (Supra) has the jurisdiction to quash the
FIR/complaint.”
37. In this regard, one important aspect to be
noted is that since the accused in this case are
Medical Professionals and the allegations are
intrinsically connected with the discharge of their
official/professional duties, a different yardstick is
to be applied. In Jacob Mathew v. State of Punjab
[(2005) 6 SCC 1], yet another three judges bench of the
Honourable Supreme Court observed about the protection
to be given to the medical professionals when it comes
to the question of prosecution; in para 34 it was
observed as follows;
Medical professionals in criminal law

34.The criminal law has invariably placed medical
professionals on a pedestal different from ordinary
mortals. The Penal Code, 1860 enacted as far back as
in the year 1860 sets out a few vocal examples.
Section 88 in the Chapter on General Exceptions
provides exemption for acts not intended to cause
death, done by consent in good faith for person's
benefit. Section 92 provides for exemption for acts
done in good faith for the benefit of a person without
his consent though the acts cause harm to the person
and that person has not consented to suffer such harm.
There are four exceptions listed in the section which
are not necessary in this context to deal with.
Section 93 saves from criminality certain
communications made in good faith. To these provisions
are appended the following illustrations:
Section 88
“A, a surgeon, knowing that a particular operation is
likely to cause the death of Z, who suffers under a
painful complaint, but not intending to cause Z's
death, and intending, in good faith, Z's benefit,
performs that operation on Z, with Z's consent. A has
committed no offence.”
Section 92
“(a) Z is thrown from his horse, and is insensible. A,
a surgeon, finds that Z requires to be trepanned. A,
not intending Z's death, but in good faith, for Z's
benefit, performs the trepan before Z recovers his
power of judging for himself. A has committed no
offence.
(c) A, a surgeon, sees a child suffer an accident
which is likely to prove fatal unless an operation be
immediately performed. There is no time to apply to
the child's guardian. A performs the operation in
spite of the entreaties of the child, intending, in
good faith, the child's benefit. A has committed no
offence.”
Section 93
“A, a surgeon, in good faith, communicates to a
patient his opinion that he cannot live. The patient
dies in consequence of the shock. A has committed no
offence, though he knew it to be likely that the
communication might cause the patient's death.”
Similarly, in the said decision itself, while framing
the guidelines to be followed before prosecuting
Medical Professionals, it was observed by the
Honourable Supreme Court as follows:
Guidelines — Re: prosecuting medical professionals

50.As we have noticed hereinabove that the cases of
doctors (surgeons and physicians) being subjected to
criminal prosecution are on an increase. Sometimes such
prosecutions are filed by private complainants and
sometimes by the police on an FIR being lodged and
cognizance taken. The investigating officer and the
private complainant cannot always be supposed to have
knowledge of medical science so as to determine whether
the act of the accused medical professional amounts to a
rash or negligent act within the domain of criminal law
under Section 304-A IPC. The criminal process once
initiated subjects the medical professional to serious
embarrassment and sometimes harassment. He has to seek
bail to escape arrest, which may or may not be granted
to him. At the end he may be exonerated by acquittal or
discharge but the loss which he has suffered to his
reputation cannot be compensated by any standards.
51.We may not be understood as holding that doctors can
never be prosecuted for an offence of which rashness or
negligence is an essential ingredient. All that we are
doing is to emphasise the need for care and caution in
the interest of society; for, the service which the
medical profession renders to human beings is probably
the noblest of all, and hence there is a need for
protecting doctors from frivolous or unjust
prosecutions. Many a complainant prefer recourse to
criminal process as a tool for pressurising the medical
professional for extracting uncalled for or unjust
compensation. Such malicious proceedings have to be
guarded against.
52.Statutory rules or executive instructions
incorporating certain guidelines need to be framed and
issued by the Government of India and/or the State
Governments in consultation with the Medical Council of
India. So long as it is not done, we propose to lay down
certain guidelines for the future which should govern
the prosecution of doctors for offences of which
criminal rashness or criminal negligence is an
ingredient. A private complaint may not be entertained
unless the complainant has produced prima facie evidence
before the court in the form of a credible opinion given
by another competent doctor to support the charge of
rashness or negligence on the part of the accused
doctor. The investigating officer should, before
proceeding against the doctor accused of rash or
negligent act or omission, obtain an independent and
competent medical opinion preferably from a doctor in
government service, qualified in that branch of medical
practice who can normally be expected to give an
impartial and unbiased opinion applying the Bolam
[(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] test to
the facts collected in the investigation. A doctor
accused of rashness or negligence, may not be arrested
in a routine manner (simply because a charge has been
levelled against him). Unless his arrest is necessary
for furthering the investigation or for collecting
evidence or unless the investigating officer feels
satisfied that the doctor proceeded against would not
make himself available to face the prosecution unless
arrested, the arrest may be withheld.
38. Indeed, the said observations were made by the
Honourable Supreme Court in the matter of prosecution
of medical professionals for medical negligence,
and in this case, that is not the scenario. However,
still, the medical professional deserves a different
kind of treatment when being prosecuted, in the light
of the spirit of the principles laid down in Jacob
Mathew's case (supra). This is mainly because medical
professionals, on account of the peculiar nature of
their profession, are bound to explore and experiment,
with the ultimate object of ensuring the welfare of the
patient. More often, they will have to take momentarily
decisions under distressed conditions and take risks,
depending on their skills and abilities. There may not
be much time to think before taking the decisions, and
they have to proceed further on mere calculations.
So long as such decisions are intended
for the ultimate betterment of the patient, no
prosecution can be permitted against them, even if

something goes wrong during the said process. Besides
the above, as observed in Jacob Mathew’s case, when the
allegations raised are mainly in connection with the
medical procedure adopted by them or the decision
taken, the courts may not be in a position to
understand the true impact or consequences of such
procedures. Therefore, unless the materials based on
which such allegations are raised were examined by the
expert persons in the subject, it is not proper to
initiate further proceedings by the court on its own.
The Honourable Supreme Court emphasized the assistance
of medical experts in the matter of prosecution for
medical negligence in Jacob Mathew’s case (supra).
Similarly, the Government of Kerala has issued various
Government orders and circulars requiring the police
officers, to refer the materials to an Expert Panel of
Doctors before proceeding with the investigation
against medical professionals in connection with the
prosecution for medical negligence.
39. Going by the scheme of the TOHO & T Act also,
such special protection to Medical professionals in

respect of the prosecution for the offences under the
said Act can be seen. It is evident from the said
provision that, the right to prosecute for the offences
is primarily vested in an Appropriate Authority
constituted under section 13 of the Act, which is
supposed to be the expert body of medical
professionals. Even though an individual is also
permitted to file a complaint under the said provision,
the said right can be exercised, only after giving a
notice of his intention to do so, to the Appropriate
Authority. Thus, the important role assigned to the
Appropriate Authority in the matter of prosecution,
clearly indicates the protection intended to be given
to the Medical Professionals in respect of the
prosecution of the offences contemplated under the Act.
The said aspect also indicates the emphasis on the need
to have a preliminary assessment of the allegations
by a body of independent professionals having
expertise, before a complaint is filed for criminal
prosecution and the medical professionals are brought
before the court of law as part of such

prosecution. It is to be noted in this regard that, in
this case, in response to the statutory notice issued
by the complainant, an inquiry was caused to be
conducted by the Appropriate Authority through a Core
Committee constituted for the said purpose, and a
report was obtained. In the said report, no
malpractices were found, and no decision to file a
complaint under section 22 (1) (a) of the TOHO & T Act
was taken, but only a warning to the 1st accused was
issued, requiring them strictly adhere to the
procedural formalities. Therefore, the scope for
prosecution on the matters already considered by the
Appropriate Authority, which is an expert body, is very
much limited. Such a prosecution can be permitted if it
is shown that the conclusion arrived by the Appropriate
Authority is patently illegal, perverse and,
prosecution at the instance of a private individual is
absolutely necessary. In this case, despite scanning
through the entire materials carefully, I am unable to
arrive at any such conclusion.
40. There is yet another aspect which fortifies the

importance of the decision of the Appropriate
Authority. Section 23(1) contemplates yet another
protection for the action taken in good faith in
pursuance of the provisions of this Act. The said
provision reads as follows;
“Section 23 - Protection of action taken in good faith

(1) No suit, prosecution or other legal proceeding shall
lie against any person for anything which is in good
faith done or intended to be done in pursuance of the
provisions of this Act.”
Thus, the action taken in good faith by a person is
given protection for the prosecution. In a given case
under this Act, in order to understand whether a
particular step taken by a Medical Professional was in
good faith or not, experience or expertise in the
subject matter is required. The said question, as such,
cannot effectively be decided by a Judicial officer
without the help of an expert, as the judicial officer
may not have the machinery, knowledge or techniques to
understand the actual consequences of the acts
committed by a medical practitioner accused of the
offences under this Act. Here also, the decision taken
by the Appropriate Authority has its own value and
importance. In short, before taking cognizance of the

offences under the TOHO & Act, there must be some
material on record showing the expert opinion of a
independent medical practitioners touching upon the
issues involved. Since section 22 of the Act
contemplates a prior notice to the Appropriate
Authority as a condition precedent for taking
cognizance, the views of such authority on the issues
should be called for as part of the pre-cognizance
inquiry.
41. In this case, it is seen from Annexure 2 order
that, apart from the statements of two witnesses, i.e.
the complainant and the wife of Sri Suresh, no
independent expert opinion was called for. The decision
taken by the Appropriate Authority was also not before
the said court, and therefore, the learned Magistrate
did not have the advantage of perusing the finding of
the said Authority. (It is to be clarified in this
regard, the complainant cannot be blamed for not
placing the said before the learned magistrate as the
said copy of the inquiry report of the Authority was
never served upon him, and he came to know about the

same only when the petitioners produced the same along
with the Crl.M.C)
42. Thus, after perusing the entire materials
placed before this court, including the finding of the
Appropriate Authority constituted under section 13 of
the TOHO&T Act, I am of the view that Annexure 2 order
of taking cognizance of the offences by the learned
Magistrate based on the Annexure 1 complaint is liable
to be interfered with. The prosecution, based on the
Annexure 1 complaint, is an abuse of the process of law
due to the abovementioned reasons.
In such circumstances, these Crl.M.Cs. are allowed,
Annexure 1 complaint, Annexure 2 order dated 16.11.2021
passed in CMP No.797/2021 by the Judicial First Class
Magistrate Court-IX, Ernakulam and all further
proceedings pursuant to it, including the proceedings
in C.C. No.498/2021 on the files of the said court are
hereby quashed.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
APPENDIX OF CRL.MC 1010/2022
PETITIONER’S ANNEXURES
Annexure1 TRUE COPY OF THE COMPLAINT, C.C NO.
498/2021 DATED 13/07/2021, PENDING BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE COURT-
IX, ERNAKULAM
Annexure2 TRUE COPY OF THE ORDER IN CMP 797/2021
DATED 16/11/2021 OF THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-IX, ERNAKULAM
Annexure3 TRUE COPY OF THE LIST OF EMPANELLED DOCTORS
AUTHORISED TO CERTIFY BRAIN DEATH IN THE
PRIVATE SECTOR
Annexure4 TRUE COPY OF THE G.O.(M.S).NO.53/2018/H&FWD
DATED 03/04/2018
Annexure5 TRUE COPY OF THE BRAIN-STEM DEATH
CERTIFICATE OF AJAY JOHNY
Annexure6 TRUE COPY OF THE G.O(M.S)NO.37/2012/H&FWD
DATED 04/02/2012
RESPONDENT EXHIBITS
Annexure R2(a) TRUE PHOTOSTAT COPY OF THE MINUTES OF THE
MEETING OF THE HIGH POWER COMMITTEE HELD ON
22-1-2017 WHICH WAS PRESIDED OVER BY THE
ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF
HEALTH AND FAMILY WLFARE , GOVERNMENT OF
KERALA
Annexure R2(b) TRUE PHOTOSTAT COPY OF THE G.O (MS)NO.
53/2018 /H FWD DATED 3-4-2018
APPENDIX OF CRL.MC NO.798/2022
PETITIONER’S ANNEXURES:
ANNEXURE A1 TRUE COPY OF THE ORDER NO.C4-5165/17/DMOH/EKM

DATED 31.3.2020 ISSUED BY THE DISTRICT MEDICAL
OFFICER, ERNAKULAM
ANNEXURE A2 TRUE COPY OF THE COMPLAINT DATED 16.4.2021

FILED BY CMP NO.797/2021 BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-IX, ERNAKULAM
ANNEXURE A3 TRUE COPY OF THE SUMMONS ISSUED BY THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-IX, ERNAKULAM IN
C.C.NO.498/2021
RESPONDENT’S EXHIBITS:
ANNEXURE R2(a) TRUE PHOTOSTAT COPY OF THE MINUTES OF THE
MEETING OF THE HIGH POWER COMMITTEE HELD ON 22-
1-2017 WHICH WAS PRESIDED OVER BY THE
ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF
HEALTH AND FAMILY WLFARE , GOVERNMENT OF KERALA
ANNEXURE R2(b) TRUE PHOTOSTAT COPY OF THE G.O (MS)NO.
53/2018 /H FWD DATED 3-4-2018
Annexure I TRUE COPY OF THE PROCEEDINGS OF THE
DISTRICT MEDICAL OFFICER OF HEALTH,
ERNAKULAM NO. C6-5165/17/DMOH/EKM DATED
01.01.2019.
Annexure II TRUE COPY OF THE GOVERNMENT ORDER (MS) NO.
53/2018/H&FWD DATED 03.04.2018.
Annexure III TRUE COPY OF THE SUMMONS ISSUED BY THE
JUDICIAL FIRST CLASS MAGISTRATE COURT -IX,
ERNAKULAM IN CC NO. 498 OF 2021 FOR
OFFENCES UNDER SECTIONS 109, 120B, 420, 468
R/W 34 IPC, SECTIONS 18, 20 & 21 OF THE
TRANSPLANTATION OF HUMAN ORGANS AND TISSUES
ACT, 1994
Annexure IV THE CERTIFIED COPY OF THE COMPLAINT DATED
16.04.2021 IN CC NO. 498 OF 2021 OF THE
JUDICIAL FIRST CLASS MAGISTRATE COURT- IX,
ERNAKULAM FILED BY THE 2ND RESPONDENT
Annexure V TRUE COPY OF THE ORDER DATED 04.02.2022 IN
CRL.M.A. NO. 1 OF 2022 IN CRL.M.C. NO. 798
OF 2022 OF THIS HON'BLE COURT
RESPONDENT’S ANNEXURES
Annexure R2(b) True Photostat copy of the G.O (MS)No.
53/2018 /H FWD dated 3-4-2018
Annexure R2(c) Certified copy of the order passed by the
Learned Magistrate on 16-11-2021 in CMP No.
797 of 2021
Annexure R2(a) True Photostat copy of the minutes of the
meeting of the High power committee held on
22-1-2017 which was presided over by the
Additional Chief Secretary, Department of
Health and Family Wlfare , Government of
Kerala
Annexure A-1 A TRUE COPY OF THE COMPLAINT DATED
16.04.2021 FILED AS CMP NO.797/2021 BEFORE
IX, ERNAKULAM
Annexure A- 2 A TRUE COPY OF THE G.O.(MS) NO.53/2018/H &
FWD DATED 03-04-2018 ISSUED BY THE HEALTH
AND FAMILY WELFARE (B) DEPARTMENT
Annexure A-3 TRUE COPY OF THE ORDER OF THE HON'BLE
JUDICIAL FIRST CLASS MAGISTRATE COURT-IX,
ERNAKULAM IN C.C.NO.498/2021 DATED
16.11.2021
Annexure A-4 A TRUE COPY OF THE SUMMONS ISSUED BY THE
JUDICIAL FIRST CLASS MAGISTRATE COURT-IX,
ERNAKULAM IN C.C.NO.498/2021
Annexure A-5 A TRUE COPY OF THE LETTER DATED 16.02.2022
FROM PRINCIPAL SECRETARY HEALTH TO THE
DEPUTY DIRECTOR OF PROSECUTION
Annexure A-6 (a) A TRUE COPY OF THIS HON'BLE COURTS ORDER IN
CRIMINAL MC NO. 798 OF 2022 DATED
04.02.2022 ORDER DATED CRIMINAL MC NO. 1995
OF 2022 DATED 24.03.2022
Annexure A-6 (b) A TRUE COPY OF THIS HON'BLE COURTS ORDER IN
CRIMINAL MC NO. 1995 OF 2022 DATED
24.03.2022
Annexure A-7 A TRUE COPY OF THE ORDER NO.
K3/26980/2018/DME DATED 28.02.2019 ISSUED
BY THE DME
RESPONDENT’S ANNEXURES
Annexure R2(b) True Photostat copy of the G.O MS No.
53/2018 H FWD dated 3-4-2018
Annexure R2(a) True Photostat copy of the minutes of the
high power committee meeting held on 22-1-
2017 presided over by the Additional Chief
Secretary, Department of Health and Family
Welfare, Government of Kerala
Annexure1 CERTIFIED COPY OF THE COMPLAINT, C.C NO.
498/2021 DATED 13/07/2021, PENDING BEFORE
IX, ERNAKULAM
Annexure2 TRUE COPY OF THE ORDER IN CMP 797/2021
DATED 16/11/2021 OF THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-IX, ERNAKULAM
Annexure3 TRUE COPY OF THE G.O.(M.S).NO.53/2018/H&FWD
DATED 03/04/2018
Annexure4 (a) TRUE COPY OF THE LIST OF EMPANELLED DOCTORS
GOVERNMENT SECTOR
Annexure 4(b) TRUE COPY OF THE LIST OF EMPANELLED DOCTORS
PRIVATE SECTOR
Annexure 5 TRUE COPY OF THE BRAIN-STEM DEATH
CERTIFICATE OF AJAY JOHNY
Annexure 6 TRUE COPY OF THE TEST REPORTS OF SURESH
Annexure 7 TRUE COPY OF THE CONSENT FORM SIGNED BY
SURESH DATED 05/03/2019
Annexure 8 TRUE COPY OF THE BRAIN STEM VIABILITY TEST
REPORT OF SURESH, DATED 06/03/2019
Annexure 9 TRUE COPY OF THE BRAIN-STEM DEATH
CERTIFICATE OF SURESH
Annexure 10 TRUE COPY OF THE JUDGEMENT IN W.P(C) NO.
5552/2017 DATED 28/06/2017 OF THE
HONOURABLE HIGH COURT OF KERALA
Annexure 11(a) TRUE COPY OF THE COMPLAINT FILED BY THE 2ND
RESPONDENT ON 14/05/2019 BEFORE THE DME
Annexure11(b) TRUE COPY OF THE ENQUIRY REPORT OF THE CORE
COMMITTEE, DEPUTED BY THE DME
Annexure11 (c) TRUE COPY OF THE ORDER OF THE DME DATED
14/06/2021
Annexure11(d) TRUE COPY OF THE REPLY ISSUED BY THE 1ST
PETITIONER ON 01/07/2021TO THE DME
Annexure 12(a) TRUE COPY OF THE LETTER FROM TMC DATED
25/11/2019
Annexure12(b) TRUE COPY OF THE COMPLAINT FILED BY THE 2ND
RESPONDENT BEFORE THE TMC ON 27/08/2019
Annexure13 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.
34537/2019 OF THE HONOURABLE HIGH COURT OF
KERALA DATED 27/05/2020
Annexure14(a) TRUE COPY OF THE COMPLAINT FILED BY THE 2ND
RESPONDENT BEFORE THE IMA ON 30/08/2019
Annexure 14(b) TRUE COPY OF THE ORDER OF THE IMA DATED
05/06/2020
Annexure 15 TRUE COPY OF THE CERTIFICATE OF
REGISTRATION UNDER THE THO&T ACT, OF THE
1ST PETITIONER
Annexure 16 TRUE COPY OF THE APPOINTMENT LETTER OF THE
TRANSPLANT CO-ORDINATORS OF THE 1ST
PETITIONER
Annexure 17 TRUE COPY OF THE G.O(M.S) NO.37/2012/H&FWD
DATED 04/02/2012
Annexure 18 TRUE COPY OF THE LETTER ISSUED BY THE 2ND
RESPONDENT TO THE DME
RESPONDENT EXHIBITS
Annexure R2(a) TRUE PHOTOSTAT COPY OF THE MINUTES OF THE
HIGH POWER COMMITTEE MEETING HELD ON 22-1-
2017 PRESIDED OVER BY THE ADDITIONAL CHIEF
SECRETARY, DEPARTMENT OF HEALTH AND FAMILY
WELFARE, GOVERNMENT OF KERALA
Annexure R2(h) TRUE PHOTOSTAT COPY OF THE OPINION TENDERED
BY DR.DIMITAR TONEY OF SOFIA MEDICAL
ACADEMY, LONDON.
Annexure R2(i) TRUE PHOTOSTAT COPY OF THE SWORN STATEMENT
GIVEN BY THE 2ND RESPONDENT ON 29.7.2021
Annexure R2(B) TRUE PHOTOSTAT COPY OF THE G.O.
(MS)NO.53/2018/H & FWD DATED 3.4.2018
Annexure R2(c) TRUE PHOTOSTAT COPY OF THE OPINION TENDERED
BY DR.HERMIEN HARTOG OF NETHERLANDS.
Annexure R2(d) TRUE PHOTOSTAT COPY OF THE OPINION TENDERED
BY PROF WAEL SAAD OF WASHINTON DC
Annexure R2(e) TRUE PHOTOSTAT COPY OF THE OPINION TENDERED
BY PROF NANCY REAU OF JOHN HOPKINS MEDICAL
CENTRE
Annexure R2(f) TRUE PHOTOSTAT COPY OF THE OPINION TENDERED
BY DR.BERNARD SEBASTIAN KAMPS OF UNIVERSITY
OF COLOGNE, GERMANY.
Annexure R2(g) TRUE PHOTOSTAT COPY OF THE OPINION TENDERED
BY PROF JOHN M VIERLING OF AMERICA
Annexure R2(j) TRUE PHOTOSTAT COPY OF THE SWORN STATEMENT
GIVEN BY THE WIFE OF ADV.SURESH ON
26.8.2021
% DSUnknown
q
1G
1g
0.1 0 0 0.1 9 0 cm
0 J 0 j 4 M []0 d
1i
0g
313 292 m
313 404 325 453 432 529 c
478 561 504 597 504 645 c
504 736 440 760 391 760 c
286 760 271 681 265 626 c
265 625 l
100 625 l
100 828 253 898 381 898 c
451 898 679 878 679 650 c
679 555 628 499 538 435 c
488 399 467 376 467 292 c
313 292 l
h
308 214 170 -164 re
f
0.44 G
1.2 w
1 1 0.4 rg
287 318 m
287 430 299 479 406 555 c
451 587 478 623 478 671 c
478 762 414 786 365 786 c
260 786 245 707 239 652 c
239 651 l
74 651 l
74 854 227 924 355 924 c
425 924 653 904 653 676 c
653 581 602 525 512 461 c
462 425 441 402 441 318 c
287 318 l
h
282 240 170 -164 re
B
Q
Digitally Signed by:

Lalitha M V
HIGH COURT OF KERALA ERNAKULAM
highcourt
Date: 2023-07-26T16:03:35.2987896+05:30

Aster Organ Trafficking Case - Ziyad

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Aster Organ Trafficking Case - Ziyad

Uploaded by

Copyright:

Available Formats

IN THE HIGH COURT OF KERALA AT ERNAKULAM

R1 BY SMT.SEENA C., PUBLIC PROSECUTOR

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON

IN THE HIGH COURT OF KERALA AT ERNAKULAM

R1 BY SMT.SEENA C, PUBLIC PROSECUTOR

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON

IN THE HIGH COURT OF KERALA AT ERNAKULAM

DR. VIVEK NAMBIAR

RESPONDENT/STATE AND COMPLAINANT:

R1 BY SEENA C, PUBLIC PROSECUTOR,

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON

IN THE HIGH COURT OF KERALA AT ERNAKULAM

DR. RAJ ANDERSON CORREYA

RESPONDENT/STATE AND COMPLAINANT:

R1 BY SMT. SEENA C., PUBLIC PROSECUTOR

IN THE HIGH COURT OF KERALA AT ERNAKULAM

DR. NOBLE GRACIOUS S.S.

RESPONDENTS/STATE AND COMPLAINANT:

R1 BY VIPIN NARAYAN, SR. PUBLIC PROSECUTOR

These Crl.M.Cs are filed by some of the accused

persons in C.C. No.498 of 2021 on the files of the

Judicial First Class Magistrate Court-IX Ernakulam. To

be precise, Crl.M.C No.1019/2022 is filed by the

accused Nos. 1,2,4,5,6 and 10, Crl.M.C No. 1010/2022 is

filed by the 12th accused, Crl.M.C No. 3048/2022 is

filed by the 13th accused, Crl.M.C No.798/2022 is by 11th

accused and Crl.M.C No.1995/2022 is filed by 8 th

accused. Altogether there are thirteen accused persons,

and the said case was instituted based on a private

complaint submitted by the 2nd respondent in Crl.M.C No

1019/2022. The prayers sought in all the Cr.M.Cs are to

quash all further proceedings in the said Calendar

Case, taken cognizance of by the learned Magistrate

based on the said private complainant. (For the sake of

convenience, the parties shall be hereinafter referred

to as per their respective status in the private

complaint. The Annexures shall be hereinafter referred

to, as mentioned in Crl.M.C No.1019/2022, unless

2. The learned Magistrate has taken cognizance of

the offences based on the private complaint, which is

produced as Annexure-I, for the offences punishable

under 18, 20 and 21 of the Transplantation of Human

Organs and Tissues Act, 1994 (hereinafter referred to

as the TOHO & T Act) and sections 109,120B, 420, 468

read with section 34 of the Indian Penal

Code. The issues in these cases are in connection

with the declarations of brain death made by the

medical practitioners in the 1st petitioner Hospital

with the help of the other doctors empaneled by

Appropriate Authority constituted under the provisions

of the TOHO & T Act, of two patients named Sri Ajay

Johny, aged 19 years, and Adv Suresh, and the

transplantation of liver of the said Ajay Johny,

initially to Adv. Suresh and later to another patient.

3. The private complaint was submitted by the 2nd

respondent, with the following allegations: Adv Suresh

was a practicing lawyer before the High Court of Kerala

and was under treatment for Liver Cirrhosis at the

2018. As a result of the treatment, he attained normal

liver functions. However, at 3.30 P.M on 4.03.2019, the

said Suresh and his wife were contacted over phone by

the 1st petitioner Hospital authorities, informing that

the liver of Sri.Ajay Johny was available for

transplantation and, therefore, the said Suresh was